McCutcheon v FEC Violates Equal Protection Clause

By: Stephen Tryon

Last week, the Supreme Court ruled that the 38-year-old individual cap on total campaign contributions was a violation of First Amendment rights to free speech. In McCutcheon v. FEC, the majority opinion relies on three premises. First, the ruling holds that political contributions are “speech” in the sense that speech is protected by the Constitution. Second, because political contributions are speech, any limit on the total amount of money allowed for one individual to contribute during a campaign cycle is a restriction on freedom of speech. Third, that restriction is not necessary to preserve the rights of other Americans.  All three premises are unsound.

Political contributions are not speech in the sense that speech is protected by our Constitution. In fact, political contributions are completely different kinds of things than constitutionally protected speech.  Political contributions are money, and money is an inherently constrained resource. The vast majority of Americans never have as much money as they want or need. Constitutionally protected speech, as an extension of a universal natural right to liberty and the pursuit of happiness, is and must be inherently unconstrained. I can say as many things as I wish; there is no monetary cost to me for my words. I do not have to budget my words. The vast majority of Americans have unimpeded access to an unlimited supply of words. To say, therefore, that there is no difference between a political contribution and the speech protected by our Constitution is like saying that there is no difference between a $20 bill and a scrap of trash paper. This is, of course, an absurd conclusion. We must, therefore, conclude that there is a difference between political contributions and speech. A restriction on contributions is not the same as a restriction on freedom of speech.

In his majority opinion, Justice Roberts argues that the free speech protected by the Constitution protects many things commonly found objectionable. Each of the examples that he cites, however, is an example of a thing that is relatively unconstrained. By extending the Constitutional protection of speech to money, Justice Roberts conflates two entirely different kinds of things.

Even if political contributions are speech in the sense intended in the Constitution, it is likely that some restriction on an individual’s total political contributions is necessary in order to preserve equal protection of the laws for all Americans.  No individual rights are absolute. We commonly talk as if they are, but that is clearly wrong. Freedom of religion, for instance, does not extend so far as to protect a religion’s practice of human sacrifice. Generally, we hold that one individual’s exercise of her constitutional rights is limited when that exercise violates the constitutional rights of other individuals. In the case of free speech, for instance, we were all taught in school that our right to free speech does not allow us to yell “Fire!” in a crowded theater when no fire exists. The reasoning behind this common example of the limits of free speech is clear:  yelling “Fire!” in a crowded theater creates a threat to the safety of others in the theater, some of whom are likely to be injured in the panic caused by this exclamation. The purpose of political contributions is to acquire access and influence with those who can affect public laws and policy. Allowing unlimited contributions essentially allows unlimited influence on public law to the very few Americans wealthy enough to make the highest contributions.  Such unlimited influence violates the equal protection clause of the Constitution and is therefore injurious to the vast majority who do not have the resources to make large political contributions.   

Senator John McCain, co-sponsor of the comprehensive McCain-Feingold campaign finance reform legislation, said the Supreme Court’s ruling in McCutcheon v. FEC undermines laws put in place to protect against corruption. He is correct. Now we need either new legislation to restore those protections, or a class action lawsuit to enable the Court to reconsider this poorly reasoned ruling. I volunteer to be plaintiff number one.

 Running for Congress in Utah as an unaffiliated candidate, Stephen Tryon was a senior vice president, Human Capital Management for online retailer His past assignments at included managing the company’s logistics operations and international business. He joined Overstock in 2004 after 21 years as a soldier. While in uniform, Steve served as the legislative assistant to the Chief of Staff of the Army, director of plans for the 10th Mountain Division, assistant professor of philosophy at the United States Military Academy, and commander of a company of paratroopers. He holds degrees from the United States Military Academy and Stanford University and is the author of "Accountability Citizenship."

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